917 F.3d 532
7th Cir.2018Background
- Indiana enacted two challenged statutes: an anti-eugenics abortion ban (prohibiting abortions for reasons like sex, race, or disability) and a fetal-disposal law (requiring cremation or burial of fetal remains; prohibiting disposal as medical waste).
- A three-judge panel of the Seventh Circuit struck both statutes: the eugenics ban under Casey's pre-viability rule and the disposal law as irrational under rational-basis review.
- Indiana sought rehearing en banc only as to the disposal provisions; the state did not seek en banc review of the eugenics ruling (effectively waiving that issue at the circuit level).
- Chief Judge Wood (concurring) agreed to deny rehearing en banc, arguing the panel correctly applied rational-basis given the parties’ concession but that the appropriate standard might be undue-burden because fetal-disposal rules implicate pre-viability abortion rights; she emphasized the record lacked evidence required under an undue-burden analysis.
- Judge Easterbrook (dissenting from denial of rehearing en banc) argued the disposal law is a permissible regulation under rational-basis review, analogizing fetal-remains protection to animal-welfare and public-sensibility regulations, and urged en banc rehearing to resolve circuit conflict and factual gaps.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of eugenics statute (ban on abortions for sex/race/disability reasons) | Statute violates woman’s pre-viability right to choose; Casey bars such prohibitions | State did not seek en banc review; argues such targeted bans may be permissible and Casey did not address eugenics-style restrictions | Panel struck the statute under Casey; en banc not sought by state so issue not revisited by full court |
| Proper standard for reviewing fetal-disposal statute (rational-basis vs undue-burden) | Plaintiffs conceded rational-basis and argued disposal rule fails that test | State maintained rational-basis review applies and the law is rationally related to protecting public sensibilities and human dignity | Panel applied rational-basis and struck the disposal statute; concurrence argues undue-burden may be the correct standard but record lacks necessary evidence |
| Constitutionality of the disposal requirement (cremation/burial mandate) | Even under rational-basis plaintiffs contended law is irrational (treats fetal tissue as persons) and imposes burdens | State argued regulation is rationally related to legitimate interests (public sensibilities, respect for remains), pointing to analogous animal-welfare and disposal laws | Panel invalidated the statute; dissent urged en banc rehearing to uphold the statute and resolve circuit split |
| Whether en banc review should be granted | Plaintiffs wanted fuller review of disposal constitutional issues | State sought en banc only on disposal; judges disagreed about appropriateness given record and standard-of-review questions | Court denied rehearing en banc; concurrence and dissent outlined opposing reasons (procedural/record concerns vs need to resolve law and conflict) |
Key Cases Cited
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (establishes undue-burden standard for pre-viability abortion regulations)
- Roe v. Wade, 410 U.S. 113 (1973) (recognizes constitutional right to choose to terminate pregnancy pre-viability)
- Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (clarifies undue-burden analysis requires weighing burdens against benefits)
- Cavel Int’l, Inc. v. Madigan, 500 F.3d 551 (7th Cir. 2007) (upholds statute banning horse slaughter on animal-welfare and public-sentiment grounds)
- Planned Parenthood of Minnesota v. Minnesota, 910 F.2d 479 (8th Cir. 1990) (upholds fetal-disposal-type statute under rational-basis review)
- FCC v. Beach Communications, 508 U.S. 307 (1993) (explains rational-basis review permits any conceivable legitimate purpose for legislation)